proRo class 23

malpractice.

in the paralysis case, is the lawyer simply liable for having a good bedside manner? or did the lawyer truly breach a duty created by reliance on his words "i'll get back to you"?

ethical rules to malpractice claims: to what extent are ethical rules and their breach evidence of malpractice.

what business of ethics experts is it to testify in regards to a tort claim? if ethics standards are rules, then they are a matter of law. or maybe the rules are just the minimally acceptable standard of practice that the lawyers of a community must observe and a violation is a violation of a standard of care

test yourself on issue spotting and rule identification!!!

the majority rule: expert testimony about the ethics rule regarding standard of care is admissible provided that the ethics rule issue is intended to protect a person in the plaintiff's position. this rule is becoming increasingly prevalent. model rules also recognize increasing scope and that since the rules est standard of conduct, then breach of conduct may be established under the testimony with respect to the rules. even still, the fact that someone violated an ethical rule is not itself sufficinet to make a malpractice claim! it is just admissible in providing duty and breach.

vitner v. sweet
must prove they would have had a better deal absent malpractice or would have been better off financially if they had not done the deal at all.... if you're the vitners, how do you prove you would have gotten a better deal absent the introduction of an ambiguous term in a contract?

in a claim of breach of fiduciary duty...

millbank just stands for the proposition where you may be exempted from proving but-for causation when you are showing that the lawyers were not entitled to certain fees: in NYS, relaxation of the but-for test is only appropriate when the remedy is restitution (when we're trying to recover the fiduciary's unjust enrichment and we're trying to disgourge client fees). at that point, strict but-for causation may not be required. but NYS courts after this case have also emphasized that the but-for does apply in breach of fiduciary when the claim is for the recovery of the value of the claim that was lost -- compensatory as opposed to disengorgement issues.

atkins v. dixon experiment.
criminal D charged with 2 serious felonies. speedy trial violations. speedy trial wasn't raised on appeal. so the criminal D is stuck in jail for life. he sues. can he recover?
the cause of the defendant's imprisonment is his own factual guilt (the exoneration rule)

see j.posner critique, levene v. plane: if seeking damages for loss of liberty during rightful imprisonment, this would be not only a righteous insult but also a ... no right to a jury nullification."

criminal clients have the right to representation that is competent. how do we reconcile posner's comments? guilty is a term of art, reliant upon the facts and procedures presented by the defendant. is it fair to say she waived her 6th amendment rights?

damages in malpractice.
compensatory.

skidmore. the lawyer fails to inform the client about the possibility of punitive damages when she had to decide whether to settle. the trial court decided she was actually entitled to an additional $500K.
wiggins. the lawyer fails to make a timely request to a statutorily required damages limit.

should the lawyer have to make the clients whole for a punative damages award?